McNeel's Estate ( 1871 )

The opinion of the court was delivered,

by Read, J.

Lavinia McNeel, of Lancaster, died in the year 1865, leaving a will which was proved in the register’s office of that county, and letters testamentary were issued to the executrix, Jemima B. Carpenter, a niece of the testatrix, on the 27th of November 1865, who filed an account of deceased’s estate in the said register’s office on the 13th day of May 1867, and the same was confirmed by the Orphans’ Court on the -17th of June 1867, showing a balance due the estate and in the hands of the accountant of $1619.14, which has never been paid or distributed.

The wife of Enos Pennock was a sister of Lavinia McNeel, and Priscilla B. Pennock was a niece, and both residents of Chester county; on the 12th October 1869, Jemima married John A. Tyler, and died in California ten days afterwards.

The said Enos and Priscilla, persons interested therein, presented their petition of review, alleging errors in said account, which are specifically set forth in it. They are,—

1. That she did not inventory or produce to the appraisers certain United States bonds, stocks and securities amounting to $3000.

2. That she never put the same into her account, which would have increased the balance due by her from $1619.14 to $4619.14, leaving out of the account nearly two-thirds of the whole estate.

The petitioners both affirm “ that neither of the said petitioners were aware of the settlement of said account by the said Lavinia till after it was confirmed, and that they had no opportunity whatever at the time, by the reason of their ignorance of the proceeding, to object to such confirmation.”

The proceedings from the filing of the account to its confirmation occupied one month and four days, and consisted of two formal acts only, filing and confirmation.

, The administrator of Mrs. Tyler, William Darlington, Esq., virtually admitted the facts of the omission in the inventory and account, and the ignorance of the petitioners of its settlement and confirmation by not denying them, but taking a technical defence, which will not serve in a case like the present.

The omission of nearly two-thirds of the estate in the inventory and in the account was a fraud, or its equivalent, and no court will permit such a gross error to remain uncorrected.

Suppose the estate had been $100,000, and $60,000 had been omitted, would any court permit the husband to pocket the fruits of a fraudulent omission by his wife ?

The court, therefore, erred in dismissing the petition of review, and the decree of dismissal is reversed, and the Orphans’ Court is directed to grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as equity and justice may require by reference to an auditor, . or otherwise.